July 26, 2011

D.C. Judge Grappling With Scheduling Multiple FCPA Trials

For Judge Richard Leon of Washington federal district court, there's no shortage of trial work on his docket.

The recent mistrial in a closely watched foreign bribery prosecution in Washington has created a scheduling headache for Leon and the dozens of prosecutors and defense lawyers involved in the 22-defendant case.

Leon met Tuesday afternoon with prosecutors and defense lawyers to hash out scheduling trials for the defendants in one of the government’s most ambitious Foreign Corrupt Practices Act cases.

Leon this month declared a mistrial in the first of several groups of defendants who went to trial on charges of participating in a bribery conspiracy involving the defense minister of Gabon. The trial lasted six weeks, double one early length expectation.

“I am painfully aware that the lawyers involved in the case have very busy schedules,” Leon said in court Tuesday. “I’m also painfully aware that these defendants have waited a long time to go to trial.”

Several defense lawyers involved in the first trial, including Eric Bruce of Kobre & Kim, told Leon that they want the retrial at the end of the line, after the other trials in the next several months.

Todd Foster of Tampa’s Cohen, Foster & Romine, said the defense lawyers who went first “all need time to refresh our practices.”

Joey Lipton, a Justice Department fraud section trial attorney, said the government wants to retry the first four defendants before any of the other trials. Lipton said the case is still fresh on everyone’s mind.

Lipton also told Leon there’s been “movement” on plea talks with an unspecified number of defendants. Several defendants have already pleaded guilty and are cooperating with the government. If three or four more defendants plead guilty, that could cut down the number of trials Leon will preside over.

At the end of the hearing, Leon addressed two top prosecutors in Washington, Thomas Hibarger, chief of the U.S. Attorney’s Office criminal division, and Denis McInerney. Leon invited the two attorneys to attend the status hearing.

Leon warned the government that he will not take as an excuse any manpower issues down the road in the event one or more of the prosecutors are unable to participate in a trial.

The judge expressed concern that the trial team, which also includes Assistant U.S. Attorney Jonathan Haray and Main Justice fraud prosecutor Laura Perkins, will not be able to handle all of the upcoming trials.

Leon said he will not tolerate any government complaint about resources, calling any such argument “unacceptable.”

“It’s not fair to defense counsel, and it’s not fair to the defendants,” Leon said at one point. He spoke about the “herculean effort” both sides are putting forth to even get to trial.

Leon did not ask questions of Hibarger and McInerney and did not order either lawyer to do anything. Hibarger and McInerney did not say anything in response to the judge, letting him talk for several minutes.

The judge said he will issue a trial schedule order sometime in the next several days.